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Recent appeal decisions of the Full Court of the Family Court of Australia,

The following case summaries, prepared by the Honourable John E Ellis, provide a snapshot of reasons for judgment of cases recently handed down by the Full Court of the Family Court of Australia.

Recent appeal decisions of the Full Court of the Family Court of Australia, 26 October 2011

The following case summaries, prepared by the Honourable John E Ellis, provide a snapshot of reasons for judgment of cases recently handed down by the Full Court of the Family Court of Australia.

LGM & CAM [2011] FamCAFC 195

This was an appeal by a self-represented wife against a finding that she contravened an order of the court and against the consequential sentence of imprisonment imposed. In this judgment, their Honours considered the standard of proof to be applied in relation to contempt and contravention applications and in the circumstances of the case recorded that the reasoning of the trial judge in relation to a finding of fact was inconsistent and overall the reasons were inadequate.

They were thus satisfied that appealable error was established. They also considered s 128 and s 138 of the Evidence Act 1995 and concluded that the trial judge in property proceedings erred in failing to inform the wife of her privilege against self-incrimination and in the contempt and contravention proceedings erred in not excluding her self-incriminating evidence which had been improperly obtained under s 138. The appeal was allowed and the conviction and sentence set aside.

The wife was granted a costs certificate in relation to the costs of the appeal.


Adams & Randall [2011] FamCAFC 204

This was an appeal by the mother against parenting orders and orders for property settlement made by a federal magistrate, the jurisdiction on appeal being exercised by a Full Court. In the parenting proceedings the federal magistrate restrained the mother from relocating the residence of the children, unless such relocation was to the Greater Sydney Metropolitan Region, court ordered or agreed to by the father.

On appeal, the mother submitted that the parenting orders were not practical, unduly onerous for the children and that the more suitable option would have been to allow her to relocate to North Queensland, as she had sought. Their Honours concluded that the mother filing further proceedings once the children started school was not a satisfactory alternative, as it would place the onus on her to demonstrate why the orders should be altered and such a hearing may create an artificial situation where the childrens time with the father may be considered in isolation, whereas the whole of the parties proposals, including the mothers application to relocate, may need to be considered.

The parenting appeal was thus allowed and the matter remitted for rehearing. Their Honours concluded that the federal magistrate made no error in determining the property issue and the appeal against the property order was dismissed. Both parties were granted cost certificates in relation to the parenting appeal and rehearing.

This judgment will appear in the next update of Australian Family Law & Practice.

Summerby & Cadogen [2011] FamCAFC 205

This was an appeal by the father against parenting orders made by a federal magistrate and an order imposing sanctions on the mother, the jurisdiction on appeal being exercised by a Full Court. Their Honours were not satisfied that the father demonstrated error on the part of the federal magistrate and the appeals were dismissed with no order as to costs.

Gerber & Bradley (FMLY Gerber) and Ors (Security for Costs) [2011] FamCAFC 206

This was an application by the wife for an order that the husband provide security for her costs in an appeal filed by him against orders for property settlement. In this judgment, their Honours set out their reasons for making the order for security and reserving the costs of the application to the appeal.

Executive Secretary - Shared Parenting Council of Australia
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